No. SCWC-15-0000034 Thursday, December 3, 2015, 8:45 a.m.

MARK H. K. GREER, Respondent/Plaintiff-Appellee, vs. ROSALYN H. BAKER, Petitioner/Defendant-Appellant, and STATE OF HAWAI`I, Respondent/Defendant-Appellee.

The above-captioned case has been set for argument on whether the Intermediate Court of Appeals or the Supreme Court has jurisdiction to entertain this appeal at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner Baker:

James E. Halvorson and Maria C. Cook, Deputy Attorneys General

Attorneys for Respondent Greer:

Michael Jay Green and Brian K. MacIntosh

Attorneys for Respondent State:

Caron M. Inagaki and Dana Barbata, Deputy Attorneys General

NOTE: Order accepting Application for Writ of Certiorari, filed 09/01/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

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Brief Description:

Petitioner-Appellant Senator Rosalyn H. Baker (Baker) applied for writ of certiorari from the judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its order dismissing Baker’s appeal for lack of jurisdiction.

This case arises from a lawsuit filed by Respondent-Appellee Mark H. K. Greer (Greer), the former Chief of the General Medical & Preventative Services Division at the Hawai`i State Department of Health. Greer filed a non-vehicle tort complaint in the circuit court against the State of Hawai`i (State) and Baker. In the complaint, Greer raised three claims for relief: (1) Count I – violation of the Hawai`i Whistleblowers Protection Act (HWPA) (HRS § 378-62); (2) Count II – intentional infliction of emotional distress; and (3) Count III – negligent infliction of emotional distress.

Baker moved to dismiss the complaint, in part on the grounds that she was immune from suit based on legislative immunity. Following a hearing, the circuit court found that Greer’s allegations of ongoing collusion removed Baker’s actions from a legislative context and thus denied Baker’s legislative immunity claim.

Baker appealed to the ICA, arguing that the circuit court erred when it denied Baker’s legislative immunity claim. The ICA dismissed the appeal, finding that it lacked appellate jurisdiction under HRS § 641-1(a), Hawai`i Rules of Civil Procedure Rule 58, and the holding in Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai`i 115, 869 P.2d 1334 (1994).

Baker’s application for writ of certiorari presents three questions: (1) Does the ICA have jurisdiction to entertain the appeal in this case under Abercrombie v. McClung, 54 Haw. 376, 507 P.2d 719 (1973), which allowed an immediate appeal of a denial of legislative immunity to preserve the protection from suit granted by the Hawai`i Constitution to legislators; (2) Does the ICA have jurisdiction to entertain the appeal in this case under the collateral order doctrine exception to the separate judgment rule; and (3) Alternatively, should the Hawai`i Supreme Court assume jurisdiction over the appeal pursuant to HRS §§ 602-4 and 602-5.